Biaggi v. Giant Food Shopping Center

• Decision Date: 16 May 1957
• Docket Number: No. 13310.,13310.
• Parties: Cornelius BIAGGI, Agnes Biaggi, Appellants, v. GIANT FOOD SHOPPING CENTER, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

244 F.2d 786 (1957)

Cornelius BIAGGI, Agnes Biaggi, Appellants, v. GIANT FOOD SHOPPING CENTER, Appellee.

No. 13310.

United States Court of Appeals District of Columbia Circuit.

Argued March 25, 1957.

Decided May 16, 1957.

Mr. William T. Ward, Washington, D. C., for appellant. Mr. Louis A. Fernandez, Washington, D. C., also entered an appearance for appellants.

Mr. Francis L. Casey, Jr., Washington, D. C., for appellee.

Before WILBUR K. MILLER, BASTIAN and BURGER, Circuit Judges.

BASTIAN, Circuit Judge.

This appeal arises from the grant by the District Court of appellee's motion made at pre-trial to dismiss for failure to state a cause of action. This action was filed to recover damages for injuries alleged to have been sustained when a carton to tissue fell upon the male appellant while he was working in appellee's store. The facts as disclosed at pre-trial were as follows:

The male appellant (hereinafter referred to as appellant) was employed by a painting contractor who was engaged to paint a store operated by appellee. The painting was done at night after the store was closed to the public, and had been going on for approximately ten nights preceding the injury. Appellant was directed to paint a sliding door between a stockroom and the public part of one of appellee's supermarkets. This door was suspended from a trolley and, when open, was recessed along the inner wall of the stockroom. Another painter, a co-worker of appellant, had applied the first coat of paint to this door the previous night and appellant was applying the final coat. After he had finished, appellant was bending or kneeling down to put a wedge under the door, which was at that time recessed (open). While so engaged, the box of tissue, weighing approximately sixty-nine pounds, struck him on his head and shoulders.

In a deposition taken before the pretrial conference, appellant stated the facts set forth above. In addition, he stated that he had no idea where the box was located nor what caused it to fall. He said that the stockroom was adequately lighted, that the painters had kept their supplies and materials in the stockroom while engaged in painting the room, that he did not know whether any of his co-workers had moved or handled the boxes stored on the shelves near the door he had painted, and that there was, on the night in question, clearance between those boxes and the sliding door. Appellant was shown a photograph, which he identified as being of the area of the stockroom adjacent to the sliding door. This photograph showed two rows of cartons neatly and evenly stored on a shelf. Appellant, when asked if the boxes were stored in the same manner on the night of his injury, replied in the affirmative. Later he asserted that he had not noticed that any of the boxes extended beyond the edge of the shelf or beyond the edge of the box on which it was stacked.

At the pre-trial conference appellants' attorney reiterated that appellants did not know how the accident occurred, that they knew only what was alleged in their complaint, and that they were relying on the doctrine of res ipsa loquitur.

The trial judge's order granting appellee's motion to dismiss recites that the order was based on "the record herein, the deposition of the male plaintiff, the argument of counsel and the plaintiffs' admitted inability to allege that their injuries were the result of any specific act of negligence imputable to the defendant, and the inapplicability of the doctrine of res ipsa loquitur. * * *"

We recognize that there is a technical or inadvertent error in the order of the District Court insofar as it infers that the complaint itself was defective. In MacMaugh v. Baldwin, 99 U.S.App.D.C. 247, 239 F.2d 67, 68, where the circumstances and order were essentially the same as in the present case, we said the order should not have stated that the complaint failed to state a cause of action, and that "the order should have recited that upon consideration of the matters mentioned no cause of action was shown." The order in the instant case should have read substantially the same as in MacMaugh.

Appellant concedes that he did not know "from where the box fell" or ...